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Ruling goes against Whole Foods in cupcake allergy case

Whole Foods

A federal appeals court on Friday reversed a lower court and ruled in favor of parents of a boy with life-threatening allergies who suffered a severe reaction after he ate a “vegan”-labeled cupcake purchased at a Whole Foods store.

“C.S.,” who was seven at the time of the incident, has allergies to dairy, tree nuts and fish, and mindful of these allergies his parents Jeff and Debbie Spano would occasionally purchase products labeled vegan from their local Whole Foods store, according to the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Jeff Spano; Debbie Spano v. Whole Foods Inc. Whole Foods is an Amazon Inc. unit.

In September 2018, a family friend purchased a vegan-labeled cupcake and the boy had an allergic reaction after eating it. Ms. Spano promptly administered epinephrin and the boy was then treated by medical professionals and released from care later that evening.

C.S. thereafter experienced a number of psychological challenges relating to social relations and food consumption, and because of this, Ms. Spano resigned from her job and devoted herself to her son’s full-time care.

The parents sued Whole Foods on their son’s behalf in U.S. District Court in San Antonio, Texas, claiming negligence, violations of strict liability, manufacturing and marketing defects, breaches of express and implied warranties, loss of earning capacity, vicarious liability and deceptive trade practices under Texas law.

Whole Foods filed a motion to dismiss the case on the basis it was preempted under the federal Food, Drug, and Cosmetic Act, which does not provide for a private right of action.

The federal district court agreed and dismissed the case, and was overturned by a three-judge appeals court panel. The question “is whether Appellants have pled tort claims which have an independent state-law basis. They have,” the ruling said.

“Each of their tort claims is ‘a recognized state tort claim’ rather than ‘a freestanding federal cause of action based on violation of the FDA’s regulations,’” said the panel, in citing an earlier ruling.

“Appellants ably lay out in their brief that each of their allegations is based on state law…If as the case develops, it becomes clear that there is no independent state duty upon which the Spanos can hang a particular claim, that claim will be preempted.

“On the pleadings, none appear to contain that fault,” the panel said, in reversing the district court’s dismissal and remanding the case for further proceedings.

Attorneys in the case did not respond to requests for comment.